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Irish Court of Criminal Appeal
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Cite as:  IECCA 3,  1 IR 484
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Judgment Title: D.P.P.-v- E.D.
Composition of Court: Kearns J., Herbert J., Butler J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Dismiss appeal
Notes on Memo: Proviso applied
COURT OF CRIMINAL APPEAL
Kearns J. 2004 No. 201
DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANTJUDGMENT of the Court delivered the 17th day of February, 2006 by Mr. Justice Herbert
E.D. was convicted by a jury at on 6th October, 2004, on 16 counts of indecent assault and 16 counts of unlawful carnal knowledge of C.D. He was sentenced to two years imprisonment on the first count of indecent assault, to five years imprisonment on each of the other 15 counts of indecent assault to run concurrently with the two years and the five years imprisonment on each of the 16 counts of unlawful carnal knowledge to run concurrently with each other and with the other sentences, all to date from the 6th October, 2004. An application for leave to appeal against both conviction and sentence was refused by the learned trial judge.
E.D. now seeks leave from this Court to appeal against his conviction on the following grounds:-
2. That the learned trial judge erred in law in refusing to limit the amount of counts in the indictment on the application on behalf of the applicant and that the number of counts on the indictment was prejudicial to him.
3. That the learned trial judge erred in law in refusing an application for a direction on behalf of the applicant at the conclusion of the prosecution case on the basis that the number of counts in the indictment and the receipt of evidence not attributable to any count on the indictment gave rise to a prejudice against him.
4. That the trial was unsatisfactory in the circumstances.”
Count 2 – on a date unknown between the 1st day of January, 1973, and the 30th day of April, 1973, both dates inclusive,
Count 3 – on a date unknown between the 1st day of May, 1973, and the 31st day of August, 1973, both dates inclusive,
Count 4 – on a date unknown between the 1st day of September, 1973, and the 31st day of December, 1973, both dates inclusive,
During the period covered by these 32 counts, C.D. was aged between seven years and thirteen years.
At the very commencement of the trial, Mr. Sweetman, Senior Counsel, representing the applicant, objected to the form of the indictment. It was common case that the complainant had alleged that the various incidents of sexual misbehaviour of which complaint was made had taken place at five particular locations only, namely, when she was being brought home from school by the applicant in his car, in and around a pig shed across the yard from her home, in the bedroom of her home where she shared a bed with another sister, when she was a passenger on his motor cycle and, while the applicant was repairing their father’s car. Counsel for the applicant argued that counsel for the prosecution should be directed by the learned trial judge to identify which counts on the indictment referred to which of these alleged incidents. He argued that only these counts should be permitted to go before the jury. He further asserted that the leading of evidence of generalised allegations which could not be specifically related to any particular counts thus identified, was of no probative value and was prejudicial to the applicant’s constitutional right to a fair trial. He argued that the applicant’s constitutional right to a trial with fair procedures superseded the right of the People to prosecute. In this respect he relied upon the decision in “B” v. The Director of Public Prosecutions  3 I.R. 140 at p. 201 per Denham J., and “Z” v. The Director of Public Prosecutions  2 I.R. 476 per Finlay C.J.
Counsel for the prosecution argued that the alleged offending misbehaviour had occurred on very many occasions at each of the indicated locations over a period of six years or thereabouts. He submitted that a long period of time had elapsed, between 22 and 27 years (by reference to the evidence actually given at the trial, since this misbehaviour had taken place) and, the complaint could not be expected in fairness to identify a particular incident as having occurred on a specific date at a specific location. A requirement, he said, for such particularity would render prosecutions of this nature impossible which would be contrary to the requirements of public justice. He referred to a decision of “DO’ R” v. The Director of Public Prosecutions (Unreported, High Court, Kelly J., 27th February, 1997).
In reply, counsel for the applicant asserted, that the applicant was entitled to a fair and separate trial on each count on the indictment which demanded the calling of relevant and identifiable evidence, so that general allegations must, through their lack of specificity with regard to the counts charged, necessarily result in evidence being led before the jury, whose prejudicial impact far exceeded its probative value. He submitted that the calling of such evidence would render it impossible to know on what basis the jury reached its verdict and raised the real likelihood that the jury might avail of evidence in respect of one count to support a finding of guilt in respect of another.
The learned trial judge, while acknowledging that the matter was, “a well known dilemma”, ruled that the trial should proceed on the indictment as laid. He stated that he would not make a theoretical decision in advance of the evidence and that counsel for the applicant could address the Court at a later stage with regard to the state of the evidence in respect of particular counts on the indictment.
In the case of The Director of Public Prosecutions v. “E.F.” (Unreported, Supreme Court, 24th February, 1994), the indictment contained 9 counts, - five in respect of one, “K.B.” and, four in respect of one, “P.F.”, - of indecent assault contrary to common law and as provided by s. 10 of the Criminal Law (Rape) Act, 1981. These offences were alleged to have been committed by the accused on two girls who were aged seven years and nine years respectively on the date of the first alleged assaults on them. Each count charged that the alleged offence occurred on a date unknown between the first day of January in one year and the first day of January in the following year, for each of the years 1979 to 1988 inclusive. No complaint had been made by either girl until the end of 1990.
The matter came before the Supreme Court by way of a Case Stated pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947 and, two of the questions submitted for the determination of the court were whether the indictment ought to be quashed as duplicitous in form and, whether the charges as preferred, alleging an offence on a date unknown in a particular year, were manifestly unfair and precluded the accused from having a fair trial in due course of law.
In delivering the judgment of the Supreme Court, (Nem. Diss) Egan J., at p. 13 of the judgment held as follows:-
All I will say at this stage is that if and insofar as there are charges in sequential periods which are of a similar nature but are not specific, an indictment containing counts of that nature may not be bad or unfair as specificity would in that situation be impractical and impossible. This is the clear view of the Supreme Court as expressed in the judgment of Egan, J., in The Director of Public Prosecutions v. E.F. (Supreme Court. 24th February, 1994).”
In applying the decision in The Director of Public Prosecutions v. E.F., (above cited), Kelly J., held as follows, (at p. 17):-
This Court is satisfied that the form of the indictment in the instant case as regards times and dates, complies with the judgment of the Supreme Court in The Director of Public Prosecutions v. E.F., (above cited). This Court is satisfied that there was no, “unnecessary proliferation of counts” in this indictment and that the number of counts laid was sufficient to maintain reality at the trial without prejudicing the applicant in organising his defence or by creating an undue impression of gravity and substance in the eyes of the jury. Indeed, senior counsel for the applicant, Mr. Sweetman, at the hearing before this Court accepted, that it was permissible for the prosecution to lay the indictment by making allegations referable to four month time spans and, that it would be quite unreasonable to expect or demand exactitude in relation to dates.
Though it does not appear so stated at any of the grounds of appeal to this Court, Mr. Sweetman’s contention before us appears really to be that only incidents alleged to have occurred at one of the five identified locations, on a date, even if unknown within a chosen quarterly period, should have been included in the indictment and, only evidence specific to each such incident should be led by the prosecution. At the trial, senior counsel for the applicant, in his preliminary objection to the form of the indictment, stated that he could identify at most, four types of incident from the complainant’s statement contained in the Book of Evidence. This Book of Evidence was not, nor, was the statement of the complainant opened to this Court during the hearing of the appeal. However, it is clear from the evidence in chief of the complainant given at the trial, which was not challenged as not being in accord with her statement to An Garda Síochána, that repeated offending was alleged by her to have occurred at each of five identified locations.
Mr. Fennelly, junior counsel on behalf of the respondent, submitted to this Court that the indictment was in a form which had been approved by the Supreme Court for this type of case of alleged repeated offending against a minor. He stated that the complainant, at this remove, was unable to recall actual dates or to identify occasions of offending by reference to other matters. He claimed that if the prosecution was to meet the objection on behalf of the applicant the counts in the indictment would have to be increased by a factor of four or five, which would then render the indictment open to challenge as unfair to the Applicant as containing an excessive number of counts.
This Court was referred by counsel for the applicant to a decision of the Court of Appeal for England and Wales in the case of Terrance John Rackham,  2 Cr. App. R., 222. In that case the appellant was charged on indictment and convicted on seven counts of the rape and indecent assault of his step daughters. Sara was born on May 12th, 1974, and the counts in respect of her spanned the period from January 1st, 1984, to December 31st, 1990. Jackie was under the age of sixteen years for the entire period laid in the indictment, that is from January 1st, 1987, to December 31st, 1993. Sara gave evidence of particular sexual misconduct which she stated had occurred several times a week in the bedroom which she shared with Jackie. She also gave evidence of other particular sexual misconduct which occurred at her grandmother’s house when, at the age of fifteen years she went to live there on a temporary basis. Jackie gave evidence of particular sexual misconduct in the bedroom, while the accused was driving his car and in a caravan. Counts 1, 3 and 5, (rape and indecent assault), were opened to the jury as “specimen” counts.
The decision of the Court, (McCowan L.J., Kennedy and Stuart – White J.J.), was given by Mr. Justice Kennedy at the request of Lord Justice McCowan. He held as follows at pp 226 to 227 of the report:-
More significantly still, the counts spanned with each complainant some seven years. Mr. Pardoe maintained his application, but the judge did not require any particularisation or other identification. Counsel have referred us to a number of recent authorities. The first is Farrugia, the Times January 18, 1988, a case where the allegations involved a course of indecent conduct against four children. Counsel for the prosecution having, after some pressure, identified the matters relied on in the various counts, the summing – up drew no connection between the particular allegations and the several counts. This Court observed that:
‘The jury were therefore given no direction as to which incident could in their verdicts be related to which count. They were given no direction as to which evidence before them was capable of corroborating each individual child on each individual count.’
The conviction was quashed in that there was thus a fundamental and irretrievable error. While corroboration is not now an issue there was in that case a like imprecision to the present in terms of particularity. Farrugia was distinguished in Shore (1989) 98 Cr. App. 32, decided some six weeks later. Shore similarly was a case of indecency with children but there the trial had proceeded without any request for particularisation or identification. Of Farrugia, Neill L.J., said at p. 38:
‘It is also to be observed that the trial proceeded on the basis that there was no requirement for the prosecution to identify a particular incident as the subject matter of a count.’
Both counsel before us had predictable submissions on this passage. To our minds there is nothing in the passage to suggest that identification of the events relied upon ought not to be ordered in a proper case.
In Evans  Crim. L. 245, a case of persistent and multifarious abuse of one child, where the complaint before this Court was of want of particularity of the indictment, Rougier J. said (at p.8 of the transcript):
‘However, in these cases where a child has allegedly been abused on many occasions, over a lengthy period, it is quite unrealistic to expect that child to be particularly specific as to precise dates or places under the sanction that if, owing to the very multiplicity of offences, coupled with the lapse of time and failing memory caused by a natural desire to put the experience behind him, he cannot do so, his abuser is immune. To hold otherwise would be a charter for those who commit this sort of offence.
On the other hand, it can validly be said that although the prosecution are not obliged in every case to give detailed particulars of times and places, at least they should be obliged to specify the type of conduct which it is alleged constitutes the particular offence which is the subject of account in the indictment. Otherwise, not to do so would have the defendant at a disadvantage not knowing what it was he was supposed to have done and being unable to marshal his mind on more important evidence to counter those allegations. It is as if the prosecution merely said:
Hardly less important is the need for the judge in the event of a conviction to know what precisely it is that the jury have found proved. So, in the case of the present counts 1 and 1a, the age of the first complainant when she was first raped and whether there was still a proved want of consent when she was seventeen years old. In our judgment, the reservations in Shore reflect no more than if a defendant chooses to meet general charges without objection he cannot easily raise want of particularity in the Court of Appeal. With the more obvious available parameters – age of the complainant and place or circumstances of the incident – it should not be too difficult in most cases, and would not have been in this case, to settle an indictment which steered a safe course between prejudicial uncertainty and over-loading. It is common enough against such a background as the present to lay account alleging say, a rape on a day between the complainant’s one birthday and the next and so on. It was not contended by Mr. Pardoe that this was impermissible a difficulty in being precise in every respect is not a reason not to be precise when one can.
Mr. Joyce remarked that because with the passage of time memories become more uncertain, too much particularity would put the prosecution at hazard, but it is because of that very uncertainty that judges are enjoined to remind juries of the difficulty for a defendant in meeting old charges. The careful use of the power to allow an amendment should ensure that there is no unfairness in either direction. It is our conclusion that the learned judge was in error in not acceding to the request for the better identification of what was relied upon in these counts. The persisting uncertainty was such that, in our judgment, the convictions on counts 1 and 1a, 3 and 3a and 5 and 5a are unsafe. Accordingly we quash those convictions.”
This Court is satisfied that in every prosecution on indictment the statutory obligation to provide, “such particulars as may be necessary for giving reasonable information as to the nature of the charges”, can only be satisfied if the indictment is so framed as to inform the accused person in plain and unambiguous language what it is that each count in the indictment alleges he or she has done or not done and, with sufficient particularity, by reference to the degree of information available to the prosecution, to enable the accused, in the words of Rougier, J. to, “Marshal his mind on more important evidence to counter these allegations”. The Court accepts that these particulars will vary of necessity with the circumstances of each individual prosecution. In cases of the nature of the instant case, there may well be an inability on the part of the complainant to be precise as to times, dates and even places, for some or all of the reasons indicated by Rougier J. in Evans  C.L.R. 452. However, to borrow the elegant phrase of Kennedy J. in Terrance John Rackham (above cited), “a difficulty in being precise in every respect is not a reason not to be precise when one can”.
This Court is satisfied that in the instant case the indictment could have been framed with greater particularity as to times, dates and incidents. This becomes apparent from a consideration of the circumstances of the complaint.
The incidents of indecent assault were alleged to have taken place at five very specific and very separate locations:-
(a) In a motor car the property of the applicant parked in the upper half of B. Lane.
(b) In a back bedroom of the family home in which the complainant shared a double bed with her sister and which was next door to the room in which the applicant slept.
(c) In rooms near a big ivy tree at the back of a pig shed in the yard of the family home.
(d) Outside the back door of the family home while the applicant was fixing the brakes on their father’s car.
(e) On a motor bicycle, the property of the applicant while the applicant was taking the complainant to a local shop for messages.
The incidents of unlawful carnal knowledge were alleged to have taken place only at location (a) and (b) above.
As to times and dates, certain very definite parameters are discernible in the complaint. The incidents of indecent assault at (a) above were alleged to have occurred exclusively after school, so that even if precise dates and times could not be recollected by the complainant, the events could only have taken place during school terms and between the end of the school day and whatever time the complainant would ordinarily be expected to return home from school. In addition, the incidents of unlawful carnal knowledge at (a) above, were alleged to have occurred when she was, “a bit older” than when the incidents of indecent assault started, when she, “could be nine, ten or eleven”, so that they are most likely to have occurred in the years 1974 to 1978 inclusive. The incidents at (b) above, were all alleged to have occurred at night during a period when the applicant was working for local farmers but was staying at home. Similarly, the incidents at (c) above, were all alleged to have occurred during the period when the applicant was working for local farmers but was living at home. However, unlike the incidents at (a) and (b) above, the complainant did not remember when the incidents at (c) above, occurred or with what, even approximate, frequency. They occurred, she complained, when she was playing hide and go seek and the applicant was around and no one was looking. The incident at (d) above, was a single incident, alleged to have occurred when the applicant was fixing the brakes on their father’s green coloured Austin A.-40. The incidents at (e) above, were alleged to have occurred when the applicant was eighteen, nineteen or maybe more, so that the complainant, being eleven years his junior, was then aged seven or eight years and this means that the alleged misbehaving occurred most likely during 1972 and 1973.
The foregoing is not intended to be an exhaustive analysis of the circumstances which were available to provide a basis for the indictment. The object is to contrast the material available with the paucity of information provided in the various counts charged in the indictment so as to demonstrate that additional particulars could and, in the interests of fair procedures and in order to comply with the statute, should have been furnished in this instance. There is nothing to indicate that Egan J. intended that the particular timeframe indicated in his judgment in The Director of Public Prosecutions v. E.F. (above cited) to be the sole template and immutable rule for all indictments in cases of serial offending against minors. The use of other timeframes or points of reference are not in any manner excluded by this judgment. In the instant case this Court is satisfied that an unduly rigid and mathematical approach was adopted to drafting the indictment and insufficient attention was given to the actual times and dates indicated by the complainant. This Court is satisfied that additional particulars of time, date, and location could have been provided in the indictment while steering “a safe course between prejudicial uncertainty and overloading”. This would have been of material assistance to the applicant in identifying precisely what misbehaving was alleged against him on each count in the indictment and therefore in organising his defence. The exact misbehaviour alleged on the part of the applicant at each of the five specific locations is very clearly indicated in the complaint of “C.D.” but despite this, each of the thirty two counts in the indictment does nothing more than recite that he either, “indecently assaulted ‘C.D.’ a female person” or “had unlawful carnal knowledge of ‘C.D.’ a girl under the age of 15 years”. This Court is satisfied that the strong disapproval of this form of ritualised and non specific statement of individual counts in an indictment which follows from the judgments of the Court of Appeal of England and Wales in Evans, (above cited) and Rackham (above cited) must apply with even greater force in this State by reason of the express provisions of s.4(1) of the Criminal Justice (Administration) Act, 1924 and Article 38.1 and Article 40.3 of the Constitution.
This Court is satisfied that the intention of the legislature in requiring that reasonable information be furnished in an indictment of the nature of the charge or charges proffered against the accused was obviously to ensure that an accused person did not suffer any material prejudice in the preparation and, additionally or alternatively, in the conduct of his or her defence by reason of a lack of specificity in the charges. This Court is satisfied that the learned trial judge in the instant case ought to have acceded to the request by counsel for the applicant and ordered that the indictment be amended so that each count indicated with as much particularity and specificity as the circumstances of the case would allow the nature of the misbehaving charged in each count on the indictment.
However, having carefully considered the entire transcript of the trial, this court is not satisfied that the applicant did in fact suffer any real prejudice as a consequence of the refusal of the learned trial judge to make the order sought. The evidence reveals that on the 21st June, 2000, at 12.30pm the applicant made a cautioned statement to Garda James Kelly in the Garda Station. In it he admitted to having indecently assaulted C.D. in his car at B. Lane on one or two occasions having collected her from primary school when she was seven or eight years of age. He also admitted to having indecently assaulted her on a number of occasions having persuaded her to assist him in repairing a motor car belong to their father in the yard of the family home. He denied every having touched her at the pig shed. He admitted that he had indecently assaulted her, but not many times, on occasions when she was seated in front of him on his motorcycle. He further admitted that he had indecently assaulted her, fairly often but within a period of a year only, when she shared a double bed with her sister. He stated that, “he did not ever remember putting him penis inside her vagina”.
At the commencement of the trial a challenge was made to the admissibility into evidence of this statement, on the grounds that it was not a voluntary statement and had been procured by a mixture of threats and inducements on the part of members of An Garda Síochána and was elicited by question put to him by those members of An Garda Síochána in breach of the provisions of rule 7 of the Judges Rules, 1922, and of the Criminal Justice Act, 1984, (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987. This issue was tried in the absence of the jury and Garda James Kelly, Sergeant Dan Kelly and Garda James Meade gave evidence. The learned trial judge ruled that the statement was admissible in evidence, holding that it was voluntary and that the applicant had not been brow beaten and there had not been a breach of the Judges Rules or the Regulations. No appeal was taken to this Court against that ruling of the learned trial judge.
This statement by the applicant was subsequently proved in evidence before the jury by Garda James Kelly and he, Garda Dan Kelly and Garda James Meade gave evidence and were cross-examined before the jury, in relation to whether the statement was or was not voluntarily made by the applicant. The evidence of these members of An Garda Síochána, which it was open to the jury to accept or reject, was that the statement of the applicant was made entirely voluntarily after caution and, in response to the statement of the complainant which Garda James Kelly had read to him in its entirety slowly enough for the applicant to understand and to absorb what was in it.
The following cross-examination of Garda James Kelly is recorded at Book 2 of the Transcript of Evidence, p. 83, questions 477-480 inclusive:-
- That is correct my Lord.
478. And it would be very difficult for anyone to remember all those details in the order in which you read them, do you agree with that?
- Well most of the details in the statement were the actual descriptions of places and bedrooms in houses and things like that that E.D. would be completely familiar with himself.
479. That is not exactly what I mean. Isn’t it correct to say that there are a number of incidents described in that statement, in C.D’s statement and they are in a particular order?
- Yes, that would be correct.
480. Would it not be difficult for anyone to remember all those incidents in the order that you read them out and deal with them in the order that you read them out in the statement?
- That possibility could be, but really in essence there are only four different incidents in the statement but there are four major incidents at different times, the old lane, the pig house, the car, fixing the brakes of the car and on the motorbike; there are really only four major points in the statement.”
The applicant then gave evidence about a dispute in the family which he thought had started in or about 1988, around the time C.D. had first made allegations against him. He said that C.D. and two other sisters had objected to another sister being given a site for a house by their father.
In cross-examination he stated that the only reason C.D. was making the allegations against him was that he would not join with her and two other sisters in objecting to another sister getting a site where their father now lives and obtaining planning permission to build a house on that site. He accepted that he did jobs on his father’s car but said that this was before he had left home when he was seventeen years of age. He said that he knew the lane well but was too young to have a car and did not have the money for a car in any event. He said that once he had left home he was living about four or five miles away and not a few hundred yards away from the house as had been suggested. In re-examination he said that the original family home was a council cottage with three bedrooms and kitchen in which his parents and ten siblings were living at the time he had moved out.
Evidence was given for the defence by Mrs. D., Mr. L.D., and Mr. R.D. Mrs. C.D., mother of the applicant said that the applicant had left home at the end of 1969 or at the beginning of 1970, about the time when C.D. was starting primary school. She said that the applicant had never collected C.D. from school in a car and did not have a car at that time. She denied that there was an occasion, as alleged by C.D. when she had checked the underwear of the complainant and, she said that C.D. had never made a complaint to her that the applicant had sexually interfered with her. She said that she did not condemn the applicant because she believed nothing had occurred. She said that the allegations were first made by C.D. at the time of the dispute over the site which had seriously divided the family.
Mr. L.D. said that he was a year younger than C.D. and always came home from school with her and with his younger brother R. In fine weather their mother would collect them from school on foot and otherwise their father would do so in his car. He said that he barely remembered the applicant about the family home at all and saw him very seldom, only on the odd occasion. He said he only became aware of the complaints by C.D. in the year 2000. He could make no sense of the complaints but considered that they might be related to the fact that the applicant would not side with C.D. in the dispute regarding the site. Mr. R.D. gave evidence essentially to the same effect. He said that he was 13 years younger than the applicant. He said that the recalled the applicant having a motorcycle in about 1986 at a time when the applicant was living in another town in the county. Senior counsel for the applicant made a full closing address to the jury. This Court is satisfied that the charge to the jury by the learned trial judge was correct in law, comprehensive and fairly balanced.
This Court has already held that the number of counts on the indictment in this case did not amount to overloading and was not prejudicial to the applicant. The evidence of the complainant, which apart from his own admissions, was the only evidence against the applicant, though non-specific with regard to times, dates, and locations, related solely to alleged sexual misbehaviour on the part of the applicant towards her at five specific locations within the period 8th November, 1972, to 8th November, 1977, inclusive. She was taken through her evidence in chief by reference solely to these locations. No evidence was given by her which did not directly relate to offences alleged to have taken place at these locations. The evidence was of repeated almost identical offending by the applicant against the Complainant at each of these locations only, with the sole exception of the yard at the family home. On the evidence of complainant this was the scene of a single indecent assault on her by the applicant, while in the statement of the applicant, indecent assaults on the complainant were admitted to have occurred on a number of occasions at this location. No evidence was laid of any other or more general sexual misbehaviour on the part of the applicant.
Each count in the indictment charged a single offence of indecent assault and a single offence of unlawful carnal knowledge committed on a date unknown within a specified period of four months. The location where these offences occurred is not an essential proof in establishing the offences. The fact that the complainant could not state the exact time or date or location of the counts charged in the indictment, other than to allege that in the case of the indecent assaults, they occurred at one of five specific locations and, in the case of the unlawful carnal knowledge offences, they occurred in a particular bedroom, does not mean that her evidence was not, “attributable to the counts in the indictment”. This Court is satisfied that the learned trial judge acted within his discretion in refusing the application on the part of senior counsel for the applicant at the close of the case for the prosecution for a direction withdrawing the case from the jury.
Section 3(1)(a) of the Criminal Procedure Act, 1993, provides that:-